he succeeds may a court compel arbitration or proceed to the merits of the underlying claim.
The defendant company and the defendant unions jointly argue that, on the papers submitted, no genuine issue of material fact exists as to the unions' fulfillment of their duty of fair representation; that the unions have not breached their duty of fair representation as a matter of law; and, therefore, all defendants are entitled to summary judgment as a matter of law. Under Rule 56(e) of the Federal Rules of Civil Procedure, "(w)hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." DeLong Corp. v. Raymond Intern., Inc., 622 F.2d 1135 (3d Cir. 1980). On the other hand, all inferences drawn from the evidentiary sources provided by the parties must be made in favor of the party opposing the motion. Small v. Seldows Stationery, 617 F.2d 992 (3d Cir. 1980).
Whether the union breached its duty of fair representation in this case raises two analytically distinct questions: first, whether the union acted in bad faith or in an arbitrary or discriminatory manner in following the procedures outlined in its collective bargaining agreement; and, second, whether the collective bargaining agreement itself, as construed and applied by the parties, is inherently violative of federal labor policy. Genuine issues of material fact exist as to each question and, therefore, summary judgment is inappropriate at this juncture.
The collective bargaining agreement between a company and a labor union lies at the heart of a duty of fair representation case, and establishes the rights and responsibilities of the contracting parties in the first instance. Federal labor law, as fashioned by the federal courts pursuant to Section 301 of the Labor Management Relations Act, serves as an overlay upon the collective bargaining agreement and defines its permissible boundaries. The grievance procedures outlined in the collective bargaining agreement between the Schweitzer Division of Kimberly-Clark Corporation and the United Paperworkers International Union differ materially from those considered in Vaca v. Sipes and other cases relied upon by defendants in support of their motion for summary judgment. As a preliminary matter, therefore, it must be determined whether the provisions of the collective bargaining agreement itself are consistent with the union's duty of fair representation.
The function of the duty of fair representation, at least in part, is to protect the interests of individual union members or minority groups within a union against potential abuse of authority by the union majority. "The collective bargaining system as encouraged by Congress and administered by the NLRB", the Court observed in Vaca v. Sipes, "of necessity subordinates the interest of an individual to the collective interests of all employees in a bargaining unit ... (T)he duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Id. at 182, 87 S. Ct. at 912. A union, it is true, may be accorded discretion under the collective bargaining agreement to supervise the grievance machinery and thereby fulfill the salutary function of ensuring that "frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures". Id. at 191, 87 S. Ct. at 917. Implicit in this award of discretion, however, is a condition that it be exercised in a reasoned and reviewable manner.
In Vaca v. Sipes, the Supreme Court held that where a union executive board met and considered an employee's grievance, and made a determination that insufficient medical evidence existed to justify sending the matter to arbitration, the duty of fair representation was fulfilled as a matter of law. Importantly, the authority to determine whether the employee's grievance would be submitted to arbitration was vested by the collective bargaining agreement in the executive board alone. Consequently the Supreme Court was able to determine, on the basis of the board's prior treatment of the grievance, the lack of evidence of personal hostility by any board member against the grievant, the manner of decision making, and the reasons advanced by the board to support its decision that the union determination not to go to arbitration was neither arbitrary, perfunctory, nor in bad faith.
The collective bargaining agreement currently before the Court, however, appears to vest the determination whether to pursue a grievance to higher levels not in the union executive board but solely in the general membership. The affidavits and depositions submitted by the parties indicate that the union membership has habitually exercised its discretionary power under the agreement by secret ballot and majority rule, and did so in the present case. If literally construed, the agreement would permit a majority of union members to deny an individual the right to pursue a grievance to arbitration for improper reasons, arbitrary reasons, or no reason at all. The court would be effectively deprived of its ability to review the determination and to ensure that the union properly fulfills its duty of fair representation to the aggrieved employee.
There is evidence that, even though the union executive board has no role in the grievance process explicitly provided by the contract, it has exercised a supervisory function and taken upon itself the responsibility of considering and deciding upon the merits of employee grievances. Federal labor policy strongly favors such a supervisory function when bargained for by the parties to a collective bargaining agreement. The Supreme Court observed in Vaca v. Sipes that:
If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully.
Id. at 192-93, 87 S. Ct. at 917-918.
In light of this policy and the practice of the parties under the contract, it may be possible to find union executive board authority over the grievance machinery implied in the collective bargaining agreement.
The union has asserted in oral argument that, as a matter of practice: (1) the union executive board always meets to consider whether a grievant's claim should be pursued prior to the general membership vote contemplated by Section 17, Paragraph 2 of the collective bargaining agreement; (2) an executive board recommendation favorable to a grievant is always considered binding upon the membership and is never put to a membership vote; and (3) whenever the executive board makes a recommendation unfavorable to a grievant, the grievant then has the additional right to take his claim before the union membership, which may, by vote, overturn the unfavorable decision of the board. So construed, the collective bargaining agreement would provide the grievant with a greater opportunity to contest his discharge than is required by Vaca v. Sipes, and would not conflict with federal labor policy.
The union's interpretation of the collective bargaining agreement at oral argument, however, is flatly contradicted by the testimony which the union itself elicited from the plaintiff at his deposition on June 11, 1980. At the deposition the plaintiff was asked the following questions and gave the following answers:
Q. And it's the usual practice of the Union, is it not, for the union to bring before the membership matters to determine whether the case should or should not go to arbitration?
A. Yes, it is.